Double deference

I know that I am supposed to be caught up along with everyone else in the same-sex marriage cases, but I am still distracted by Decker v. Northwest Environmental Defense Center, decided last week at the Supreme Court. In a separate opinion designed to push the buttons of what Scotusblog’s John Elwood called Supreme Court nerderati, Justice Scalia again called for the reconsideration of the principle of Auer deference. Auer says that just as courts should defer to agencies’ reasonable interpretations of ambiguous provisions in their organic statutes, so should they defer to agencies’ reasonable interpretations of ambiguous provisions in regulations that they themselves promulgate. Chief Justice Roberts and Justice Alito suggested that they would also be open, in a different case, to reconsidering Auer.

I commend Elwood’s post on Decker, and Scalia’s opinion, to all interested readers. Scalia’s formal concern about Auer - that it violates separation of powers because it allows the same entity to both promulgate a binding regulation and to interpret it – is a challenging one. Scalia makes a persuasive case that the Auer rule allows too much agency overreach. But I am troubled by the deployment of separation of powers as the constitutional category that undoes Auer. Unlike the Congress, agencies clearly do have both the authority to promulgate and to “execute” or “enforce” regulations. As long as we leave this basic feature of administrative law intact, to my ear the formal separation of powers concern rings somewhat hollow.

What does not ring hollow to me is Scalia’s fear, also raised by Alito, that deference to agency regulation-reading gives agencies two bites at the apple and encourages them to promulgate vague regulations. This seems to me quite right. It would be a sensible check on agency power that, if agencies are going to resolve ambiguities and receive deference for their reasonable resolutions, they ought to have to be explicit about those resolutions in advance and not be able to engineer them ad hoc.

But, again, I wonder how much administrative law accepting this view would force us to undo. It does seem odd to give agencies deference to interpret statutes they did not write (that’s Chevron) but not rules that they did (that’s Auer). It seems even odder to assume that Congress means to delegate agencies to resolve statutory ambiguities (that’s also Chevron) but not that Congress both intends to and has the constitutional power to delegate agencies to resolve regulatory ones.

Moreover, we already allow agencies to have their first bite ad hoc, if they resolve the ambiguities as part of a precedential adjudication. And, under the adjudication caselaw, agencies can then change their minds in the next precedential adjudication, as long as they give a reasonable account of themselves. Reversing Auer would limit agency powers exercised through rulemaking without any corresponding constraint on ad-hoc-ery in adjudication. This creates the obvious incentives – incentives that, from the point of view of notice and rule of law, are undesirable.

This long-standing puzzle is both important and difficult. Be on the lookout for the case that presents it squarely to the Court. As Elwood notes, five Justices seemed uninterested in this issue in Decker (Breyer did not participate); they apply Auer uncritically. Query whether the Roberts/Alito opinion makes it more or less likely that there are another couple Justices interested in reconsidering the deference doctrines.